Johns v. City of Eugene et al
Filing
94
OPINION AND ORDER: Defendants' motion for a stay 87 is GRANTED. Plaintiff's request to certify that appeal as frivolous 90 is DENIED. The parties are ordered to file a joint status report within thirty days of the issuance of the mandate in defendants' interlocutory appeal. Signed on 3/28/2018 by Judge Ann L. Aiken. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
ALVIN JOHNS,
Case No. 6: 16-cv-00907-AA
OPINION AND ORDER
Plaintiff,
v.
CITY OF EUGENE, OFFICER
YOLANDA CONNER, and OFFICER
BRYAN INMAN,
Defendants.
AIKEN, District Judge:
In this civil rights action, plaintiff Alvin Johns asse1ts various federal and state claims
against defendants, the City of Eugene ("the City") and Eugene Police Department Officers
Yolanda Anderson 1 and Bryan Inman, in connection with his arrest. After defendants moved for
summary judgment on all claims, I held that plaintiffs Fomth Amendment and negligence
claims could proceed to trial. Johns v. City of Eugene, 2018 WL 634519, *1 (D. Or. Jan. 30,
2018). Defendants appealed my denial of Officer Anderson and Officer lnman's asse1tion of
qualified immunity to the Ninth Circuit and filed a motion for a stay of proceedings pending the
1
The complaint used Officer Anderson's former surname, Conner.
Page 1 - OPINION AND ORDER
resolution of that appeal.
Plaintiff responded by moving to certify defendants' appeal as
frivolous. For the reasons set fotih below, defendants' motion is granted and plaintiffs motion
is denied.
"Although a pretrial appeal of an order denying qualified immunity normally divests the
district court of jurisdiction to proceed with trial, the district court may ce1iify the appeal as
frivolous and may then proceed with trial[.]" Padgett v. Wright, 587 F.3d 983, 985 (9th Cir.
2009); see also Behrens v. Pelletier, 516 U.S. 299, 310 (deeming "appropriate" the Ninth
Circuit's processes for certifying qualified immunity appeals as frivolous).
An appeal is
frivolous ifit is "wholly without merit." United States v. Kitsap Physicians Serv., 314 F.3d 995,
1003 n.3 (9th Cir. 2002).
A motion to certify an interlocutory qualified immunity appeal as frivolous raises an
interesting question: how does the "wholly without merit" rule, id at 1003 n.3, compare to the
qualified immunity test itself, which requires the trial court to find that every reasonable officer
would have been on notice that his conduct violated the law, Thompson v. Rahr, -
F.3d - ,
2018 WL 1277400, *4 (9th Cir. Mar. 13, 2018)? At first glance, it is a bit difficult to tease apart
those two standards. It is easy to see how an ordinary claim might fail to survive summary
judgment yet contain enough merit to rise above being frivolous. Cf, e.g., Patton v. Cty. of
Kings, 857 F.2d 1379, 1381 (9th Cir. 1988) ("A prevailing civil rights defendant should be
awarded attorney's fees not routinely, not simply because he succeeds, but only where the action
brought is found to be unreasonable, frivolous, meritless or vexatious.") (internal quotation
marks omitted). But by definition, qualified immunity awards all close legal calls to the state
actor. A comi denying qualified immunity at the summary judgment stage must conclude that,
viewing the facts in the light most favorable to the plaintiff, no reasonable official could have
Page 2 - OPINION AND ORDER
believed that her conduct was unconstitutional. When a violation of the law is objectively clear,
it seems reasonable to say that it by definition is "wholly without merit" to argue otherwise.
Amwest Mortg. Corp. v. Grady, 925 F.2d 1162, 1165 (9th Cir. 1991).
But the standards ca1111ot be the same, because certification of a qualified immunity
appeal as frivolous is the exception, not the rule. See Padgett, 587 F.3d at 985. Frivolous
appeals are more than mere losing appeals; they are appeals from decisions "so plainly conect
that nothing can be said on the other side." Apostol v. Gallion, 870 F.2d 1335, 1339 (7th Cir.
1989); see also Marks v. Clarke, 102 F.3d 1012, 1017 n.8 (9th Cir. 1996) (citing Apostol with
approval). That is a high bar.
As the Supreme Court reiterated just last term, Fourth Amendment cases-and the
determinations of qualified immunity that often accompany them-are intensely fact-specific.
See District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) ("We have stressed that the
specificity of [the applicable clearly established law] is especially important in the Fourth
Amendment context.") (internal quotation marks omitted). As plaintiff concedes, there is no
directly on-point precedent for the factual scenario presented in this case. I decline to ce1tify
defendants' appeal as frivolous in large part due to the absence of such precedent. See id at 590
(discussing the "rare obvious case, where the unlawfulness of the officer's conduct is sufficiently
clear even though existing precedent does not address similar circumstances," but stating that "a
body of relevant case law is usually necessary to clearly establish the answer with respect to
probable cause") (internal quotation marks omitted).
Plaintiff insists that the denial of qualified immunity here is not the sort of decision that is
reviewable through an interlocutory appeal, citing the existence of disputed questions of material
fact. Plaintiff misunderstands the applicable standard. A pretrial appeal of a qualified immunity
Page 3 - OPINION AND ORDER
decision is improper where immunity hinges on disputed facts-i. e., if the jury believes the
arresting officer's testimony, then qualified immunity applies; but, if the jury believes the
plaintiff's testimony, the immunity defense is not available. See Johnson v. Jones, 515 U.S. 304,
313 (1995) (concluding that a district court's summary judgment order, "though entered in a
'qualified immunity' case," is not reviewable if it "determines only a question of 'evidence
sufficiency,' i.e., which facts a party may, or may not, be able to prove at trial.''). By contrast, a
denial of qualified immunity is immediately appealable so long as the appeal is "conceptually
distinct" from the merits of the action in that the
appellate court reviewing the denial of the defendant's claim of immunity need
not consider the correctness of the plaintiff's version of the facts, nor even
determine whether the plaintiff's allegations actually state a claim. All it need
determine is a question of law: whether the legal norms allegedly violated by the
defendant were clearly established at the time of the challenged actions.
Id. at 312 (quoting Mitchell v. Forsyth, 472 U.S. 511, 528 (1985)).
Defendants' qualified
immunity argument before this Court was, appropriately, that the officers did not violate clearly
established law even when the evidence in the summary judgment record is viewed in the light
most favorable to plaintiff.
My rejection of that argument is an immediately appealable
collateral order.
Defendants' appeal is not frivolous, which means that this Court is divested of
jurisdiction to proceed to trial on plaintiff's Fourth Amendment claim until after the Ninth
Circuit resolves that appeal. Because the factual questions underlying the Fourth Amendment
claim and the state-law negligence claim are closely related (perhaps even identical), and
because supplemental jurisdiction over the negligence claim is based on federal question
jurisdiction over the constitutional claim, it would be inefficient to proceed to trial on the
negligence claim alone.
Page 4 - OPINION AND ORDER
Accordingly, I GRANT defendants' motion for a stay (doc. 87) and DENY plaintiffs
request to cettify that appeal as frivolous (doc. 90). The patties are ordered to file a joint status
report within thi1ty days of the issuance of the mandate in defendants' interlocutory appeal.
IT IS SO ORDERED.
ยท~/(,_
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